Media Statement – 30/7/2022
111 MPs vote to extend SOSMA provision 28 day post-arrest detention without Magistrate’s supervision indicates a lack of commitment for Human Rights.
MADPET(Malaysians Against Death Penalty and Torture) is most disappointed in the 111 Members of Parliament of Malaysia in the Dewan Rakyat that voted in favour of extending the power of the police under Section 4(5) to hold suspects of the offences listed under the Security Offences (Special Measures) Act 2012(SOSMA) for not more than 28 days for the purpose of investigation, without the need to bring these detained suspects before the Magistrate to obtain remand orders. The Magistrate plays a most important role in preventing or reducing police abuse, and even possibly torture.
On 27/7/2020, the extension of the Sosma provision, as required by section 4(11) SOSMA was approved after 111 MPs voted in favour and 88 against, with the remaining 21 absent.
Section 4(5) SOSMA provides that ‘Notwithstanding subsection (4), a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.’
However, Section 4(11), however imposed an obligation on Parliament to review the continued applicability this Section 4(5), and it states, ‘Subsection (5) shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of parliament to extend the period of operation of the provision.’
The last extension is set to expire on July 31, and that is why it came before Parliament.
It must be noted that if Section 4(5) is not extended, then police after arrest would have to bring arrested suspect before the Magistrate within 24 hours, and application for further remand by the police for the purposes of investigation. The maximum remand 14 days, which is really more than sufficient for investigations to be completed by competent officers, and these suspects could then be charged in court, and once charged they will be in detention as SOSMA still unjustly says no Bail for any of listed SOSMA offences.
It is disappointing that some MPs, even Ministers, seem to have forgotten about the presumption of innocence until proven guilty in court. Those arrested by the police are mere suspects and the purpose of the detention post arrest is only for one purpose, that is investigation. It is not to punish and not for any other purposes. Maybe the government should now disclose how many persons were arrested for SOSMA listed offences, and at the end of the day were not even charged but released.
Hence, it was shocking to read that our Home Minister Datuk Seri Hamzah Zainudin said, “It is unfair to say that those nabbed are oppressed when we know they are in the wrong,”(Star, 27/7/2022).
MADPET reiterates that it is not for the police or the Home Minister to say someone is in the wrong or a criminal, for that right of determining the guilt or innocence is only with the Courts who will decide after a fair trial.
Section 4(5) SOSMA legalize the violation of the right of a suspect of certain crimes in Malaysia, and it also goes against Article 5(4) of the Federal Constitution which states that ‘(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate"s authority’.
The bringing before the Magistrate is to ensure that the police do not abuse their powers, and to also make sure that the detainee is not subjected to illegalities by the police including torture. When brought before the Magistrate, he/she can make sure that everything is done according the law, and the detainee suspect and/or his/her lawyer have the right and/or ability to disclose to the Magistrates the wrongdoings and abuses of power of the police, and the Magistrate can do the needful to end future wrongdoings, or even act of past abuses. The Magistrate’s role is a most necessary check and balance against abuses and wrongdoings of the police.
In the past, remand for the purposes of remand was 14 days, and some Magistrate did simply order 14 days remand on the first application by the police, which puts the detainee suspects at risk of abuses and wrongdoings of the police.
Parliament, in its wisdom, amended the Criminal Procedure Code vide Criminal Procedure Code (Amendment) Act 2006. A new version of section 117(2) was inserted, which today reads,
‘The Magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows:
(a) if the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application; or
(b) if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application."
For lesser offences, the Magistrate could now order remand for not more than 4 days on first application by the police, and not more than 3 days on 2nd application. For serious offences, even murder, on 1st application remand could be no more than 7 days. This was done by Parliament to end the possibility of abuses by the police, that can arise through long uncheck periods of detention for the purposes of investigation.
Home Minister was wrong when during the debate, he said that more time was required to turn suspects into witnesses to catch bosses. He said, “For cases of gangsterism, it is difficult for us to nab the bosses, if we don’t have those working for them as witnesses. Sometimes, it takes one to two weeks to convince them to be a witness,”(Star, 27/7/2022).
MADPET reminds the Minister that the purpose of detention of suspects is just for the purpose of investigation of the suspect’s alleged crime – it is certainly not for ulterior motives of ‘pressuring’ detained suspects to turn into prosecution witnesses. It is not to get evidence for crimes of another.
Post arrest detention is only for purpose of investigation, and is not for punishment or any other ulterior purposes.
Now, the extension of the application of Section 4(5) SOSMA will now need the approval of Senate, and MADPET hopes that Malaysian Senators will act justly and reject extending this provision for another 5 years.
MADPET calls for the abolition of Section 4(5) SOSMA, and for Malaysia to maintain the important monitoring and check and balance role Magistrates play in this aspect of the administration of justice. The bringing of arrested suspects before the Magistrate within 24 hours, and no further detention orders until the Magistrate after hearing both parties allows. The maximum period of each remand order even for the SOSMA listed offence must be limited to not more than 7, or using the same formula as provided for in our Criminal Procedure Code, being depending on the maximum sentence each offence.
MADPET reminds that there have been too many deaths in police custody, some of which the police have been directly responsible for. There is also possible a lot of torture and other abuses that happen during this detention for investigation, but many a victim is afraid to report or seek justice for fear of possible repercussions.
MADPET reiterate the call for the abolition of SOSMA, and let all criminal cases investigated and prosecuted in accordance to the Malaysian Criminal Procedure Code and Evidence Act. In the interim, a reduction of the list of SOSMA offences just limited to offences that caused harm and/or death to victims would be good.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Nod for 28-day detention under Sosma
Wednesday, 27 Jul 2022
DESPITE strong opposition, the motion to extend the detention period of suspects under the Security Offences (Special Measures) Act 2012 (Sosma) was passed in the Dewan Rakyat in the second attempt.
The motion was put for a bloc vote with a total of 111 MPs voting in support. Another 88 voted against it while 21 were absent.
Datuk Seri Hamzah Zainudin in his winding up speech on the debate of the Bill said it takes time to investigate bigger cases.
“For cases of gangsterism, it is difficult for us to nab the bosses, if we don’t have those working for them as witnesses. Sometimes, it takes one to two weeks to convince them to be a witness,” he said.
Hamzah added the Bill was not “cruel” and was in the interest of the country.
“It is unfair to say that those nabbed are oppressed when we know they are in the wrong,” he added.
A fiery moment occurred in the House when Mohamed Hanipa Maidin (PH-Sepang) interjected and labelled Hamzah as “goblok” (imbecile) and “bodoh” (stupid).
Hamzah was visibly taken aback and Speaker Tan Sri Azhar Azizan Harun, who was chairing the session, said he will be issuing a final warning to MPs in the House against using such language.
Several MPs demanded Hanipa retract his words, but Hamzah said there wasn’t a need to do so, as such an uncouth behaviour displayed in Parliament will be witnessed by Malaysians who will be voting in the upcoming national polls.
“That is why we should reject him beginning today and God-willing, Malaysians will realise that this man cannot be given a place in this noble House,” added Hamzah.
The law under Sosma is enforceable for a five-year period and required a nod from Dewan Rakyat to extend it for a further five years.
Last Wednesday, the House passed a Bill to revoke its earlier decision not to extend Sosma.
This was done as a Bill, which was defeated, cannot be retabled again until a full year has passed unless revoked.
During the previous Dewan Rakyat meeting on March 23, the motion to extend the enforcement of subsection 4(5) of Sosma which allows for the detention of suspects for up to 28 days without trial, was voted down by MPs.
The five-year limit for the provision ends on July 31, 2022. - Star, 27/7/2022
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